February 17, 2010

Record workers comp-related ADA payout

An employer's failure to to accommodate an injured worker to return to the workplace can be costly - just ask Sears Roebuck & Co., who learned the hard way. The U.S. Equal Employment Opportunity Commission (EEOC) just announced that Sears will distribute $6.2 million to 235 former employees, the result of Americans With Disabilities Act (ADA)-related litigation. The monetary distribution stems from a September 2009 consent decree which resolved a class lawsuit against the retail giant. It is the largest ADA settlement in a single lawsuit in EEOC history.

This case began in 2001, when appliance technician John Bava injured his knees, wrist, and back after falling down the stairs while on a service call at a customer's home. The injuries required two surgeries and physical therapy.

"Afterward, he tried to go back to work under restricted conditions in which he would not be required to kneel or squat for a prolonged period. "They wouldn't let me come back," he said.

Bava, 58, said he applied for several other jobs at Sears, including a service manager position that he claims went to someone younger and less qualified. He said he learned he had lost his job when his wife tried to use his employee discount card and found it had been canceled.

Bava obtained a copy of his personnel file from Sears, and found a memo saying he had been fired for medical reasons.

Bava said he now works as a repairman for another employer and stays busy despite the restricted conditions that his injuries make necessary."

Bava filed a discrimination charge through the EEOC. A subsequent investigation by EEOC turned up 235 other employees who sought return to work with an accommodation, but were fired by the company; more than 20 other claimants' situations were investigated and found to be ineligible.

The average award is approximately $26,300. According to reports in the National Law Journal via Law.com, employees will receive between $2,500 and $122,500 each, depending on their individual circumstances. As with all EEOC litigation, none of the settlement fund will retained by the EEOC; all of it will be distributed.

Employers would do well to examine their own return-to-work policies and programs in light of the other provisions that the three-year consent decree prescribes beyond monetary relief: an injunction against violation of the ADA and retaliation, a requirement that Sears amend its workers' compensation leave policy, and train its employees regarding the ADA. Sears must also provide written reports to the EEOC detailing its workers' compensation practices' compliance with the ADA and post a notice of the decree at all Sears locations.

Besides compliance with the ADA, there are several other lessons to be learned by the stunning lack of communications evidenced in this case:

When an employee is out on disability, stay in frequent communication to monitor their recovery progress

Have a return-to-work goal and plan for all injured workers

If you fire employees, tell them! They shouldn't have to learn about it through canceled benefit cards.